The maxim: Certainty is not overruled by doubt is one of the universal maxims in Islamic law. It applies to three-quarter of fiqh. Some positions maintain that the maxim does not have significant effect on commercial transactions. The work started by discussing the legal basis of the maxim. It also discussed the detailed meaning of certainty and doubt in Islamic law and jurisprudence and the principles with which they are applied to the particulars of law. Relevant particulars of commercial matters related to it were cited as examples after analysis of the general meaning of each maxim. These examples reveal the significance of the maxim in providing basic principles for dispute resolution as well as the responsibility of proving allegations between parties to commercial transactions. It also laid out in detail the party upon whom the onus of proof lies in litigations to counter what is presumed by law.
Keywords: Certainty (yaqĩn), Conjecture (Zann), Doubt (shakk), Illusion (Waham), Commercial Transactions, Dispute resolutions, presumption of law, onus of proof.
* Higher Sharia Court Judge, Kala Balge Sharia Court and overseeing Rann Sharia Court, Borno State Judicial Service Commission, Borno State, Nigeria. E-mail: [email protected]
* Senior Lecturer, Faculty of Law, Department of Sharia, University of Maiduguri, Nigeria. E.-mail: [email protected].
** Lecturer, Faculty of Law, Department of Sharia, University of Maiduguri, Nigeria. E.-mail: ………
1. INTRODUCTION:
Legal maxims (Al-Qawã’id Al-Fiqhiyyah) are imperative in Islamic jurisprudence as they encapsulate perceptions and precepts that can abet to figure out the factual essence of the Islamic Law in details. Reflective of a consolidated reading of fiqh by great jurists, it is a handy tool for researchers who need to expand their grasp and understanding of content and objective of the law. More importantly, they ease to arrive at the appropriate ruling where is no direct text is available a particular matter.
The word al-Qawa’id is a plural qã’idah, a derivative of qa’ada and literally has the meanings of fixation, consistency, and being well established. Qa’ida on the other hand means base, and Qawa’id means a foundation of a building, as Allah, the Most High says:
“And remember Ibrahim and Isma’il raised the foundations (Qawã’id) of the House” [1]
Technically, it is a general rule applicable to all its related particulars. Sadrush SharÄ©’ah (d. 747) defined Qawã’id as general propositions [2] . Examples are Qa’ida Nahwiyyah (Rule of Grammar), Qã’idah Mantiqiyya (Rule of Logic), Qa’ida UsÅ©liyya (Rule of Jurisprudence), etc.
Fiqhiyya (lit. of law) is the adjective of Qãida (maxim); a derivative of fiqh (law) which literally means understanding. Fiqh is a term that came to denote Muslim jurists’ detailed study of practical aspect of the Devine ordainments. Imam Shafi’i (d. …) defined it as the knowledge of the practical injunctions of Shari’a acquired from its detailed evidences [3] .
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The two words, i.e. Al-Qawã’id al-Fiqhiyya, referred herein as Legal Maxims has several definitions which basically revolves around two positions. The often quoted definition of legal maxims is that “it is a general rule which applies to all of its related particulars [4] . As this is an extension of the technical meaning of term Qã’ida in other discipline to the Qã’ida in law (fiqh), this definition has failed to encapsulate the concept of legal maxims and thus not reflective of its essence. Al-Hamawi (d. 1098H=1687AD) has stated that Qã’ida of legists (fuqahã) is different from Qã’ida in other disciplines such as Grammar (Nahwu), Logic (Mantiq) and even Jurisprudence (UsÅ©lul Fiqh). In these disciplines, it is a rule applicable to all its related particulars. [5]
From the foregoing we can say that a “legal maxim is a general proposition of law that applies to most of its related particulars” [6] .
The reason for opting to this definition is that maxims do not apply to all particulars that seem related to it. The particulars that do not apply to a general principle are known as exceptions (mustathnayãt). These exceptions often represent independent or auxiliary maxims in themselves. The exceptions do not however negate the general application of maxims, as the principles of the maxim still represent application to majority; and exceptions are but of minority in all maxims [7] .
Another characteristic of a legal maxim worth noting is that a maxim applies to most of its related particulars, which are scattered in various themes or chapters of fiqh. But a principle that only applies on one particular theme or chapter of fiqh is referred to as a Regulator (Dãbit). In other words, a Regulator (Dãbit) is limited to one chapter and provides a legal principle on injunctions of a particular chapter of Fiqh. According to Al-SuyÅ©ti (d. 911H) says a maxim collects branches from different chapters while Dãbit collects branches of the same chapter [8] . An example of Dãbit is: injunction of sale of a nonexistent is same as that of risky-taking (gharar) sales (hukmu bai’il ma’dÅ©mi yatba’ul gharar) [9] . This Dãbit is applicable to the chapter of buying and selling.
Importance of Legal Maxims (Al-Qawã’id Al-Fiqhiyyah):
The great Maliki Jurist of Egypt, Imam ShihãbuddÄ©n Al-Qarãfi (d. 676H) described it as “embodying secrets and wisdoms of Sharia” [10] . Legal maxim brings together widely scattered branches of fiqh into a single abstract rule making it easy for jurists, researchers and students of the Islamic law. It also saves time in researching injunctions for several matters that are otherwise scattered in different chapters of books of fiqh. That is why, according Al-SuyÅ©ti, some jurists refer to fiqh as knowledge of similitudes. Legal maxims therefore make it easy to diagnose juristic injunctions, comprehend and memorise auxiliaries and particulars of the law” [11] .
The four schools of Islamic Jurisprudence are in agreement over the five of the Universal Maxims that they clasp within themselves the entire quintessence of the Islamic Shari’ah. They are depicted to be universal maxims for being all-inclusive and applicable to the entire range of fiqh without any specification [12] ; whereas the rest of the maxims are just elucidations of these five:
“Matters are (judged) by their intents” (Al-UmÅ©ru bi-maqãsidihã) [13] ;
“Hardship begets facility” (Al-Mashaqqatu tajlibu Al-TaisÄ©r) [14] ;
“No harming and no counter-harming” (Lã darara wa lã dirara) [15] ;
“Custom is Authoritative” (Al-‘Ãdatu Muhakkamah) [16] .
“Certainty is not be overruled by doubt” (Al-YaqÄ©nu la yazÅ©lu bish-shakki).
Beside its general application to three-quarter of Fiqh chapters, Certainty is not overruled by Doubt provides basic guidelines for disputes resolution in contracts including commercial and financial transactions. The paper will discuss in detail the general meaning of the universal maxim “Certainty is not overruled by Doubts”, its importance and relevance to commercial transactions.
This universal maxim is one of the earliest maxims to appear in the discipline of maxims derivation (Al-Taq’Ä©d Al-Fiqhi) [17] . The earliest reference to it was made by Imam Shafi’Ä© (d. 204Hº819C.E.) while discussing admission/ confession. He said: “the basis of what I say is that I will always hold people by what is certain, drop the doubtful and use that which is most probable” [18] . Al-Karkhi (d. 340H) too in his UsÅ©l has stated that the basis (in law) is that what was confirmed with certainty cannot be overruled by doubt” and say it is one of the principles the Hanafi School was based on [19] . Over time, it was abridged into its current form: Certainty is not overruled by doubt (Al-YaqÄ©nu lã yazÅ©lu bish-Shakk) [20] .
2. CERTAINTY IS NOT OVERRULED BY DOUBT [21]
(Al-YaqÄ©nu lã yazÅ©lu bish-Shakk)
Generally, any matter confirmed to have existed with certainty remains certain until proven with evidence to be otherwise. It is not invalidated by mere doubt or supposition. The same is also said regarding a matter whose non-existence is confirmed continues in that state until also proven otherwise. This is because doubt is weaker than certainty. It will not, therefore, nullify certainty whether or not the later is positive or negative [22] . In other words, whenever the existence or non-existence of a matter is established through legally accepted means, a subsequent doubt over the continuance of this state will not affect the legal regard given to the confirmed certainty.
Legally, certainty (yaqÄ©n) is defined as the knowledge that a fact has either definitely occurred or not. Doubt (shakk), which is the opposite of certainty (yaqÄ©n) [23] , is a vacillation over the occurrence and non-occurrence of a fact. Meaning none between the two possibilities is of higher probability. But if either has greater probability, the doubt seizes and it is thus certain (yaqÄ©n) in the usage of legists (fuqahã). This form of yaqÄ©n is often interchangeably used with the term ẓann. The term Ẓann which literally means conjecture is less than certainty in the language of Jurists and Logicians. To them, Certainty (YaqÄ©n) is belief that a particular matter is so-and-so and cannot be but so-and-so in manner consistent with its reality and essence. In other words, it is the perfect knowledge free from error. Because injunctions of Sharia are applied on what evident or conspicuous (zãhir) and not absolute certainty, the jurists’ definition is not as encompassing as that of legists (Fuqahã) which includes the most probable event [24] . This is because there are issues which the Sharia may have considered them as certain though they can logically be incorrect. Example is an accepted testimony by witnesses before a Court is a legal certainty for its truthfulness, but is possible that they are telling lies. Al-Qarãfi says that necessity is the reason why conjecture (ẓann) is regarded as certain in Sharia for absolute certainty may not be achieved. Possibility of erring in such ẓann is however lesser. But the doubtful cannot be a basis for a judgement [25] . This is the reason why scholars of Malikiyya school of thought did not refer to this maxim in the above phrase, that is Certainty is not overruled by doubt, rather their preferred phrase is: The Norm of Sharia is that Injunctions are but based on knowledge and that which is in doubt is not considered [26] .
2.1 BASIS OF THE MAXIM:
In the Qur’an, the saying of Allah, the Most High:
“But most of them follow nothing but Conjecture (Zann): truly Conjecture can be of no avail against truth. Verily Allah is well aware of all that they do” [27] .
One of the meanings of Zann (lit. conjecture) is illusion, i.e. where the fact thought to apply to a particular matter does not in reality apply to it. In such a situation, such conjecture will not overrule what was known for certain [28] .
Also from Sunnah, the Hadith narrated by Abbãd bin TamÄ©m from his uncle from the Messenger of Allah, peace be upon him, in which a man complained to the Prophet, peace be upon him of feeling something (departing) his body. The Prophet, peace be upon him, told him not leave (his prayers) until he hears a sound or smells (the gas) [29] “. The hadith means that one should not ignore the certain, which is the state purity before prayer, in favour of that which is uncertain, i.e. the feeling that something has departed his body. Therefore, such doubt will not overrule the original certainty.
In another version of the Hadith related by Abu Huraira, the Prophet, peace be upon him, said: “… and if one of you feels something in his belly, and doubts whether something has left his body or not, he should not leave the mosque until he hears a sound or feels a gas” [30] .
2.2 SIGNIFICANCE OF THE MAXIM:
On the significance of the above Hadith, Al-Nawawi (d. 676H) asserts that: this Hadith is a basic source and a great principle [31] among the principles of fiqh. The principle is that things are judged to remain on their original forms until the certainty of the contrary is established, a subsequent doubt will thus not harm it [32] .
Jurists have unanimously agreed on the usage of this maxim. Imam Al-Qarafi states that: this is an agreed upon maxim, the only disagreement among scholars is in some of its applications [33] . Ibn DaqÄ©q al-‘Eid (d. 702H) also said: The Hadith is a basic principle in the usage and/or tossing of doubts; and scholars appear to be in agreement on this maxim, even though they differ in some of its applications [34] .
2.3 RELEVANCE TO COMMERCIAL TRANSACTION:
By ‘Commercial Transactions’ we are referring all Contracts in Shari’a relating to the exchange of goods and services. Examples include: transactions like bay’ (sales contract), ijãrah (lease), muzãra’ah (farm leasing) partnership (muqãradah), wakãlah (agency) ju’ala (promise of reward for a particular action), kafãlah (surety), hawãla (transfer of debt), rahn (mortgaging), etc. In fact, all contracts with the exception of marriage contract which is not under the scope of this paper.
As we have indicated above, certainty in law refers to the most probable assumption. Example of such probable assumption is seeing a man with reasonable wealth possessing a reasonably priced car for several years; one can confidently testify that it belongs to him [35] . It is upon this kind of certainty that many legal injunctions apply [36] .
Other examples of its relevance to commercial transactions include:
Where there is a contract between two parties and a doubt is raised on whether or not there was dissolution of the contract. The contract is presumed to be subsisting as this is the certainty [37] .
Also where it is confirmed that A owes B certain amount of money. But after A’s death, a doubt is raised on whether or not he has paid, lack of payment will be presumed as it is the certainty [38] which cannot be overruled by doubt.
“Certainty is not overruled by Doubt” is supplemented with many Auxiliary Maxims (qawã’id far’iyyah) and Regulators (Dawãbit) which together elaborate its legal implication and significance. These will be classified under three categories, namely: Auxiliary Maxims giving weight to certainty, Auxiliary Maxims emphasising on overlooking of doubt and Maxims indirectly related to the “Certainty is not overruled by Doubt”. Related maxims to each category will be discussed in the following order:
Auxiliary Maxims giving weight to certainty:
The norm is that the status quo remains as it was before (Al-Aá¹£lu Baqã’u mã kãna ‘ala mã kãna);
Let the Ancient rest on its age (Al-QadÄ©mu yutraku ‘alã qidamih)
The norm (in Sharia) is freedom from liability (Al-Aá¹£lu barã’at Al-Dhimmah);
The norm (of Shariah) is that acquired attributes do not exist (Al-Aá¹£lu fis-Sifãtil Aridah Al-Adam)
The norm in Law is that things are faultless or fit (Al-Aá¹£lu As-Salama)
The Norm (of Sharia) regarding things is permissibility (Al-Aá¹£lu fil Ashyã’i al-Ibãhah)
The Basis in Law Regarding Contracts is that they permissible and binding (on its parties) (Al-Aá¹£lu fil ‘UqÅ©di As-Sihhah wal-LuzÅ©m)
The Norm of law regarding terms and conditions is validity (Al-Aṣlu fish-Shurũti as-Sihhah)
The basic principle is to ascribe the event to the nearest time of occurrence (Al-Aá¹£lu Idãfatul Hadithi ilã aqrabi auqãtih)
Auxiliary Maxims emphasising on overlooking of doubt:
No attention shall be paid to inferences (implication) in the face of an explicit statement (Lã ‘ibrata lid-Dalãlati fÄ© Muqãbalatit TasrÄ©h)
No weight is attached to Illusion (Lã ‘ibrata littawahhumi)
No argument is admitted against supposition based upon evidence (laa hujata ma’al ihtimaalin naashi’i ‘an daleel)
The apparently erroneous supposition is not to be taken into consideration (laa ‘Ibrata biz Zannil bayyni khata’uhu)
Maxims indirectly related to the “Certainty is not overruled by Doubt:
No statement is imputed by to a person who keeps silence, but silence is tantamount to a statement where there is a necessity for speech (Lã yunsabu ilã sãkitin qaulun, wa lãkinnas sukÅ©tu fÄ© ma’radil hãjati ilãl bayãni bayãnu)
The original state of words is the literal sense (Al-Aá¹£lu fil Kalãmi Al-HaqÄ©qah)
No room for ijtihãd where there is a decisive text (Lã masãgha lilijitihãdi fÄ© mauridin nass)
3. AUXILIARY MAXIMS GIVING WEIGHT TO CERTAINTY
3.1 The norm is that the status quo remains as it was before [39] :
(Al-Aá¹£lu Baqã’u mã kãna ‘ala mã kãna)
It is a basic provision in Sharia is that the status quo remains as it was before unless it is proven to have changed. To explain further, we can say that a fact whose existence or non-existence is said to be certain in the past is regarded to be as it was and does not change, until evidence is available to change such status. Such proof is mostly based on evidence, confession, admission, and refusal to take oath [40] .
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This principle of law is referred to as Istis’hãb in Islamic jurisprudence [41] . Considered to be one of the secondary sources of law, Istishãb has been defined as the presumption of continuity of a matter base on its previously established state. The previously confirmed state may either be legal or rational. This maxim represents a form of Istishãb which is: accompanying what the law has confirmed to have existed in the past into the present; such as a person who bought a piece of land will be presumed to still owe it until anything that may change that presumption is proved [42] . This type of Istishãb applies in cases such as presumption of continuation ownership after execution of a contract; the liability of a person who damage’s anothers property remains until repayment and the existence of a liability on an indebted person where the taking up of the loan is attested to [43] .
An example of the application of the maxim in commercial transaction is where a lender claims paying his debtor; or a buyer claims paying the price to the seller; or a lessee claims paying the lessor; but the debtor, the seller and the lessor denied any payment. The statements of the party denying will be accepted. As the norm is the continuance of what has existed, these claims will not be accepted until legally proved [44] .
Another application is when a buyer claims that the condition of a commodity he previously saw has diminished during delivery; according to Ibn Qãsim (d. 918H), the statement of the seller will command credibility base on this maxim. Ash-hab (d. 204H) on the other hand also states that the claim of the buyer will have legal backing because the legal norm is that the buyer is free from liability (Al-Aá¹£lu barã’at al-Dhimmah) [45] . Hanafis have distinguished between the two by asserting that if much time has lapsed from the time of inspection of the commodity and the time of delivery, the statement of the buyer will be backed by the law [46] until the contrary is proved by the seller.
3.2 Let the Ancient rest on its age [47]
(Al-QadÄ©mu yutraku ‘alã qidamih)
Provided it does not violate the right of another, a thing that has existed since time immemorial will enjoy legal protection. The law presumes that something that has remained for a very long time has a legal precedence [48] . This is also regarded as Istishab as it is an accompanying of the past condition, whether it is a proof of ownership through evidence or the admission of a respondent. Such istishab can be relied upon provided it has not been lawfully changed which should be through evidence, admission or refusal to take oath [49] . This maxim is also closely related the norm is that the status quo remains as it was before [50] .
Example of its application is that whenever ownership of a property is confirmed by either admission of respondent or conclusive evidence, it shall be presumed to continue in Sharia law [51] . Also where two persons claim the ownership of a property, and both provided evidence of their ownership with date. The presumption of the ownership will be in favour of the person who provides earliest date, because he claims to own the property during a time when the plaintiff does not challenge his ownership. This will remain until the plaintiff can prove the contrary [52] .
3.3 The norm (in Sharia) is freedom from liability:
(Al-Aá¹£lu barã’at Al-Dhimmah)
A person is born free from anything; and being liable of anything is contrary to the original norm (asl) of law [53] . Literally, the word asl means root or source, and in the context of this maxim it means the most probable (al-rãjih [54] ) evidence upon which the law relies and bases its rulings. This maxim applies to both fact and law.
Regarding its application to fact, the general rule is that a person is certainly free from any obligation or liability and making him liable for something is both doubtful and a contradiction of the original state of man; being born free from any liability. Claims of liabilities such as debt, obligation that was the result of later cause will only be accepted if proved through means provided by the law. In the absence of any such proof, the Sharia regards a person to have no liability, thus making onus of proof upon the person who alleges a fact or claims it.
The maxim is inspired by the Prophet’s Hadith, peace be upon him, in which he said: “the onus of proof is on the claimant, and taking of an oath is incumbent upon him who denies.” [55] The hadith provides that the party insisting to disprove the status quo and wants to establish a recently acquired attribute is the claimant and the onus of proof is upon him; while the party that clings on the original (asl) attribute is the defendant/respondent and upon him is the oath because he is denying the allegation. [56]
This maxim is an equivalent to what is generally known as the presumption of innocence, though this principle is more general. The expression presumption of innocence implies that it relates principally to criminal procedure, whereas the non-liability maxim extends to civil litigation and to religious matters generally. The normative state, or the state of certainty for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt [57] .
The maxim provides practical solutions in cases of disputes or disagreements between parties to commercial transactions. Where, or instance, there is a disagreement between the owner and a borrower, a victim and an assailant, the statement of the accused will be accepted because the legal norm is that he is free from an excess liability [58] .
Another example is where there is disagreement on the amount of loan between the lender and the indebted; the statement of the indebted will be presumed [59] . Also, the statement of an agent regarding damage to a property will be accepted, likewise regarding denial of infringement and negligence, with oath [60] .
In law however, this maxim is often referred to as: The norm (of law) is non-existent (Al-Aá¹£lu Al-‘Adamu). To majority of jurists, both these principles refer to the same thing, as lack of an injunction means one is not obliged to carry it out. In other words is not liable for not doing it. A second aspect of this principle also closely related to the notion of original non-existent, is original permissibility (al-ibãha al-asliyyah). In this concept, everything is legal ab initio, and one will not be sanctioned for either doing or omission. Jurists refer to it as permission of the reason (Al-Ibãh al-‘Aqliyyah).
This implies that it is a presumption of continuation of the original non-existent of injunction base on reason (aql) rather than the words of the Law-giver. This position can as well be deduced from many verses of holy Qur’an according to many scholars [61] . An example of such verses is the saying of Allah, the Most High:
“Those who devour usury will not stand except as stand one whom the Evil one by his touch Hath driven to madness. That is because they say: “Trade is like usury,” but Allah hath permitted trade and forbidden usury. Those who after receiving direction from their Lord, desist, shall be pardoned for the past” [62] .
When taking usury was prohibited, the companions of the Prophet feared the consequence of t
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